Complainant

Respondent

Parties

Oana  Morosanu

Charlemont Leisure Investments Limited Hilton Dublin Hotel

Representatives

  Self

Lydia Dodd Ibec

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00046503-001

03/10/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00046503-002

03/10/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00046503-004

03/10/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00046503-005

03/10/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00046503-006

03/10/2021

The Complainant joined the Hotel Group on or about 13th of August 2012. Initially the Complainant did work in Food and Beverages and Accommodation. At the time of joining the Complainant had disclosed to her employer that she suffered from a back problem. In time the Complainant was promoted to an administration role in the Events section of the Hotel.

The complaints referred occurred arising from communications during Covid.

Due to Covid restrictions the Hotel was not running or facilitating corporate events.  The Complainant was on layoff and receiving the Pandemic Unemployment Payment. On or about May 2021 and subsequently the Complainant was requested to return to work in areas other than administration such as in a supervisory role in food and beverages and subsequently in reception. The Complainant turned down these roles.

During the exchanges with the Complainant the Company representatives did say if the Respondent was refusing to return to work, they may have to report her to Revenue or Social Welfare as she was not fit to return to work. The Complainant believed that this was a threat and believed that she had informed her employer that due to a back problem she could not stand for any length of time. Because of her disability she was unable to take up the roles that were offered to her.

In August 2021 the Complainant submitted a medical certificate that stated that the Complainant could not stand for protracted periods of time and suffered from a chronic back problem.

In September 2021 the Respondent asked the Complainant to work as a receptionist. She declined this role as she would have to stand for protracted periods of time.

The employer never reported the employee as someone who was unavailable for work.

The employee was eventually informed that her previous role in events was available as the Hotel returned to normal operations; however, she declined to return and resigned from the Hotel Group.

CA-00046503-002 Terms and Conditions of Employment

The Complainant stated that contrary to the Terms of Employment (Information) Act, 1994 as amended the Employer changed her terms and conditions by requiring her to work in the Food and Beverage area and as a receptionist. Her role with the Hotel prior to being placed on layoff was as an administrator. They also threatened her with being reported to Social Welfare and/or Revenue regarding her unavailability to work in those positions.

CA-00046503-004 Employment Equality Act, 1998

The Complainant suffers from a back complaint. This was disclosed to her employer when she started her employment. The Complainant alleges that she feels discriminated against by the employer’s attempts to get her back into work into different positions, which she was not fit for and physically incapable to do. Her medical condition was totally ignored by her employer. The employer is attempting to force the employee to work in roles that would put her health at risk. The employer has failed to provide any reasonable alternatives. The employer has been aware of her medical condition for many years.

On the 11th of May 2021, the Complainant’s line manager Ms Debbie Kelty informed her that the Hotel Group could offer her a waitress job in Powerscourt Hotel. However, due to a chronic medical condition (sciatica), she declined, as she could not stand on her feet for long hours, hold trays or lift heavy things.

On the 9th of July 2021 Ms Debbie Kelty Manager, contacted the Complainant by phone and was told that her position as a Conference and Events Coordinator in the office was not available and would not be available for several months. She was requested to return to work as a Breakfast Supervisor which would involve some waitress duties. Again, she declines because of her medical condition.

Arising form this refusal it is alleged a manager stated that if she was unavailable for work, she should be on sickness benefit and not PUP.

On the 10th of August 2021 the HR manager requested that she submit a medical certificate and on the 11th of August 2021 she sent her medical cert to Human Resources.

The Complainant was happy to consider any office-based role.

On the 27th of September Ms Zoey Groome HR Manager contacted her and informed her that her role would not be available for some time and could she take up a receptionist role temporarily. That was declined as it would entail standing on her feet for 8 hours.

On the 6th of October 2021 the HR Manager contacted her to say that her role was now required and that she should return to work on the 11th of October 2021.

On the 17th of October 2021 the Complainant emails the HR manager to inform her that she had lodged a complaint with the WRC.

On the 19th of October 2021 the Complainant resigns from the Company on the grounds that her working relationships with management had fundamentally changed arising from their continuing requests to do a job that she was unfit to do and that would put her health at risk.

CA-00046503-002 Terms and Conditions of Employment

The Complainant was requested to work in Food and Beverages in a supervisory capacity as she had previously worked in that area. She was also asked to work in reception as it was not a job requiring any heavy work. The Hotel was short staffed, and the Complainant was treated the same as all other staff members who were on PUP and could not be called back to work in their previous roles due to Covid Public Health Regulations or operational difficulties in re-opening. There also was a staff shortage and the Hotel was relying on staff co-operation so that it could reopen. There was no breach of the Act.

CA-00046503-004 Employment Equality Act, 1998

The Respondent stated that up to the 11th of August 2021 they had no medical certificate stating that the Respondent was limited in the type of work she could do.

The Respondent had previously worked in Accommodation and in Food and Beverages.

At that time the Respondent knew that the Complainant had a back problem, but not to the extent that it would severely limit what she could do at work.

At all times requests were made to the Respondent, they were not demands. Up until the medical was received on the 11th of August 2021, the Respondent was a stranger to exactly what type of work the respondent could not do.

The Respondent was informed several times that she was unavailable to work and assumed that was because she was sick. In that context it believed that the PUP might not be the appropriate benefit to be availed of. That observation was made when in the Summer of 2021 there was a severe labour shortage in the hospitality sector and at a point clarification from Government did say that the PUP was being paid where an employee could not find suitable employment.

The employer never made any report to any third party concerning the eligibility of the Complainant for the PUP.

The receptionist role was offered in the belief that it was light work; again, there was no compulsion whatsoever brought on the Complainant to accept that role.

The Respond resigned her from her employer. And she was offered her role back in early October 2021 prior to the resignation.

 CA-00046503-004 Employment Equality Act, 1998 (The Act)

The Complainant is claiming discrimination on the ground of her disability and that she has been discriminated against in relation to her conditions of employment.

When requested by the Adjudicator if the complainant was treated differently to other employees the HR Manager of the Hotel said she was treated like other employees who also were requested to go into other roles.

The Complainant’s manager stated that she in fact had transferred to a front of house role as her job as Events Manager was not required.

The Hotel management did know that the Respondent had a back problem; however, it was only after the Complainant was asked to send in her medical certificate on or about the 10th of August 2021 did the Respondent know about the type of restrictions on the Complainant’s capacity to work in certain roles.

The Respondent was offered her role working back as a Corporate Events co-ordinator in early October 2021.

This is a case where the factual matrix in total needs to be considered.

Discrimination for the purposes of the Act is defined as:

6.(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘discriminatory grounds’) which—

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”),

The Medical Certificate signed by the Complainant’s doctor on the 10th of July 2021 and submitted on or about the 10th of August 2021 stated:

[The Complainant] is suffering from CHRONIC LOWER BACK PAIN and she has been to physiotherapy and she is also waiting further investigations. She also suffers from redacted and this can complicate her back as well. Due to these conditions she is not able to deal with strenuous work involving her back which can further complicates her condition. She is only allowed to do office work which does not involved any heavy lifting and prolonged periods of standing.

It must be accepted that the employee was treated like all other employees up to the request to work in Reception, as the employer did not have sight of this medical cert until the 11th of August 2021.

However, having received the above medical cert, the Complainant was asked to accept a receptionist job, which she states, she could not do and that the offer is discriminatory. The Complainant argued that if the employer wanted her back to work, they should have reasonably accommodated her in roles that she could perform without risking her health.

Section 16(3) of the Act states:

3) (a) For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as ‘appropriate measures’) being provided by the person’s employer.

(b) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability—

(i) to have access to employment,

(ii) to participate or advance in employment, or

(iii) to undergo training,

unless the measures would impose a disproportionate burden on the employer.

(c) In determining whether the measures would impose such a burden account shall be taken, in particular, of—

(i) the financial and other costs entailed,

(ii) the scale and financial resources of the employer’s business, and

(iii) the possibility of obtaining public funding or other assistance.]

(4) In subsection (3)—

‘appropriate measures’, in relation to a person with a disability—

(a) means effective and practical measures, where needed in a particular case, to adapt the employer’s place of business to the disability concerned,

(b) without prejudice to the generality of paragraph (a), includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but

(c) does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself;

Section 85(A) states that in the first instance the Complainant must establish facts that give rise to an inference or presumption of discrimination:

85A.— (1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the [Director General of the Workplace Relations Commission] under section 85(1), facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.

(4) In this section ‘discrimination’ includes—

(a) indirect discrimination,

(b) victimisation,

(c) harassment or sexual harassment,

(d) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.

How was the Complainant discriminated against?

1.       Was she discriminated against by not being reasonably accommodated to return to work?

2.       Was she being discriminated against by being harassed to take up a role that she couldn’t fulfil based on her disability?

The fact that the Complainant had a disability is not in dispute between the parties and the Respondent Hotel accepted the recommendations contained in the Medical Certificate it received on the 11th of August 2022.

At face value the Complainant was treated like all other employees. The discrimination if it did arise could only have occurred post receiving the medical certificate, as the Complainant had previously carried out manual work while having a back condition, had completed work which required her to stand for a few hours and had lifted and moved furniture as part of job in accommodation. Medical conditions change and they can improve and deteriorate. However, the current medical condition limiting her work to administrative roles was not known until August 2021.

The role offered to the Complainant after that date was the Receptionist role on or about the 27th of September 2022 and while she declined that role, some days later she was offered her old role back as event co-ordinator to return on the 11th of October 2021.

On these facts it appears the Hotel was acting reasonably and was not discriminating against her and treating her less favourably than a person with a different disability or none, as the role she was offered was the role that she stated she was fit to return to. The Complainant was offered a few roles. However, it is argued by the Respondent that she was not pressurised to return to any of them.

The Complainant believes that she was in fact being pressurised and that the Respondent did not accept that her disability was limiting and continued to exert undue pressure on her.

Is there any evidence to support that assertion?

At section 14.A(7) Harassment is defined as:

(7) (a) In this section—

(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and

(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature,

being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person

On the facts of this case has the Complainant established facts that tend to give rise to a presumption of discrimination. The Complainant has not established facts that give rise to a presumption that she was being subjected to conduct that had the purpose or effect of violating a person’s dignity.

The Hotel could only have known of her deteriorated medical condition after receiving the medical cert.

Offering the Complainant, a receptionist role in and of itself does not meet the threshold that would establish conduct that prima facie had the purpose or effect of violating a person’s dignity. When the Complainant stated that it was her belief this role would require long periods of standing, no further pressure was put on the Complainant.

In Ruffley v The Board of Management of Saint Anne’s School [2017] IESC O’Donnell J considered the issue of ‘dignity at work’:

The word dignity, carries a considerable charge with a distinct moral component. ... The denial of fair procedures is never a trivial matter but I do not think it can be comfortably said in this case, to be undermining of human dignity, particularly when it is the same breach of procedures which is also contended to be inappropriate. More importantly I consider that the requirement that the procedure be repeated inappropriate and undermining of dignity is a test which uses language deliberately intended to indicate that the conduct which will breach it is both severe and normally offensive at a human level.

The language used in the statute implies that at a human level the conduct complained of was offensive and crossed a threshold where it could be said was an affront to a person’s dignity. I don’t find that the Complainant has established facts where prima facie it could be argued that the conduct of being offered a receptionist’s role meets that test. As the Complainant has not met the prima facie test where a presumption of harassment is established, I must find that the Complainant was not discriminated against.

CA-00046503-002 Terms and Conditions of Employment

There is no evidence that supports the Complainant’s view that a condition or term of employment was changed. While she was requested to do other work during the Pandemic because the Hotel had no work in the Corporate Events area, those requests were made based on the knowledge that they had of what the employee previously had done. It is not reasonable to state that they placed pressure on her or changed a term by requesting her to do other work having regard to the pressures that the business was experiencing arising from the Pandemic.

I determine that the complaint is not well founded.

CA-00046503-004 Employment Equality Act, 1998

How was the Complainant discriminated against?

1.       Was she discriminated against by not being reasonably accommodated to return to work?

2.       Was she being discriminated against by being harassed to take up a role that she couldn’t fulfil based on her disability?

There is no evidence that supports the Complainant’s contention that she was discriminated against in her terms and conditions as she was offered her role back. The requests for her to do other work during the pandemic was not unreasonable as she previously had done similar type work even though she had a back condition.

Offering the Complainant, a receptionist role in and of itself does not meet the threshold that would establish conduct that prima facie had the purpose or effect of violating a person’s dignity. When the Complainant stated that it was her belief this role would require long periods of standing, no further pressure was put on the Complainant.

In Ruffley v The Board of Management of Saint Anne’s School [2017] IESC O’Donnell J considered the issue of ‘dignity at work’:

The word dignity carries a considerable charge with a distinct moral component. ... The denial of fair procedures is never a trivial matter but I do not think it can be comfortably said in this case, to be undermining of human dignity, particularly when it is the same breach of procedures which is also contended to be inappropriate. More importantly I consider that the requirement that the procedure be repeated inappropriate and undermining of dignity is a test which uses language deliberately intended to indicate that the conduct which will breach it is both severe and normally offensive at a human level.

The language used in the statute implies that at a human level the conduct complained of was offensive and crossed a threshold where it could be said was an affront to a person’s dignity. I don’t find that the Complainant has established facts where prima facie it could be argued that the conduct of being offered a receptionist’s role meets that test. The medical certificate was not a comprehensive occupational assessment and used language generally not recommending certain types of work without specifying the duration or length of time that she could stand for. Once she stated that she couldn’t do that job, it was accepted. It is hard to see how that equates to harassment. The mere conduct of requesting her to consider a receptionist role, which is administrative in nature cannot be said to be offensive even having regard to what the Complainant’s doctor had stated.

 As the Complainant has not met the prima facie test where a presumption of discrimination has been established about her terms and conditions or conduct that could be said offend the dignity of the person, I must find that the Complainant was not discriminated against.

CA-00046503-002 Terms and Conditions of Employment (Information) Act 1994:

There is no evidence that supports the Complainant’s view that a condition or term of employment was changed. While she was requested to do other work during the Pandemic because the Hotel had no work in the Corporate Events area, those requests were made based on the knowledge that they had of what the employee previously had done. It is not reasonable to state that they placed pressure on her or changed a term by requesting her to do other work having regard to the pressures that the business was experiencing arising from the Pandemic.

I determine that the complaint is not well founded.

Discrimination